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“Disability Denied”   A disability law blog by Ontario disability lawyer Mark Yazdani

Definition of Disability

The definition of disability is the crucial backbone of every disability insurance policy.  Both group long-term disability (LTD) policies and individual policies contain a definition or a test which a claimant must meet in order to be eligible for benefits. The definition can take many forms, but the fundamental elements can be expressed as follows:

Having a sickness or suffering an accidental injury

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As a result of that sickness or injury being unable to perform your job duties.

In some policies, you must be unable to perform all the duties of your occupation to meet the definition. In others, you must only be unable to perform one or more important duty. There may be additional requirements such as being under the continual care of a qualified physician or earning less than a certain percentage of your pre-disability income.  There may also be separate definitions that apply to partial or residual disability.

Note also that most group LTD policies contain a change of definition clause which after a period of time requires you to be unable to work in “any occupation” for which you are reasonably fitted by your training, education and experience.

The role of the insurance adjuster is to gather all a claimant’s medical information and determine whether the claimant’s condition or symptoms prevent them from performing their occupational duties. Sometime this is expressed as having restrictions or limitations on the ability to work.

In the course of assessing a disability claim, insurance adjusters will usually have the claimant’s medical information reviewed by medical professionals employed by the disability insurance company.  These professionals may include nurses, rehabilitation consultants, and physicians of various specialities.  The purpose of the review is to obtain an opinion as to whether the medical information on file supports the inability of the claimant to perform their job duties.  Note that these professionals only conduct a “paper-review” of the medical information and do not examine the claimant themselves.  If the company wishes to have a claimant examined, they will hire a physician to perform an “Independent Medical Examination”.

How do courts interpret the definition of disability? The Supreme Court of Canada in the 1983 case Paul Revere vs. Sucharov adopted the following interpretation which has been followed by courts across Canada :

“The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so.  In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies.”

If your disability claim has been denied because the insurance company does not believe you meet the definition of disability, contact my law office for a free consultation regarding your legal rights.  A court of law may strongly disagree with the disability insurance company’s definition of disability.

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